1. THE son of the complainant was suffering from abdominal pain and he was taken to City Mission Hospital, Damoh on 2.7.2002, where X -ray was taken, which revealed that there was stone in the bladder area. The patient was admitted and on 3.7.2002, Dr. Ashish Agrawal, O.P. No. 2 performed operation for removal of stone from ureter. The patient remained admitted in the hospital upto 10.7.2002, but he was still feeling pain and as such, X -ray was done on 11.7.2002. The X -ray revealed that there was no stone in the bladder. However, the patient was still feeling pain and, as such, the complainant took his son to Dr. Pathak in Pathak X -ray and Ultrasonography Centre on 12.7.2002, where X -ray was taken wherein it transpired that there was stone in the left renal pelvis. Dr. Pathak, therefore, advised operation. The complainant informed him that the operation had already been done for removal of stone, but he was told by Dr. Pathak that previous operation was not successful and the stone had not been removed therefore another operation for removal of stone is necessary. The son of the complainant was again operated and complaint was filed before District Forum seeking compensation of Rs. 2,10,000. The complaint filed before the District Forum was dismissed vide order dated 29.11.2002. This order was challenged before the State Commission.
2. THE State Commission held O.P. Nos. 1 to 3 responsible for medical negligence and ordered payment of charges of operation to the tune of Rs. 20,000 and compensation of Rs. 30,000 for physical and mental torture to the minor child. The total sum of Rs. 50,000 was ordered to be paid by all the opposite parties jointly and severally to the complainant. Cost of Rs. 1,000 was also awarded in favour of the complainant. This order is subject matter of challenge in the revision before the Commission.
3. WE have heard Counsel appearing on both sides. Learned Counsel for the petitioner submitted before us that the X -ray report dated 2.7.2000 had indicated the presence of radio opaque shadow and presence of one elongated medium size stone in the bladder. Dr. Ashish Agrawal had operated on the son of the complainant for removal of the stone but the stone had already moved from the said position and could not be detected as a result of which, the stone could not be removed. However, since X -ray, which was taken on 11.7.2002, did not indicate the presence of any Radio opaque shadow in the bladder, the son of the complainant was discharged. According to learned Counsel for the petitioner, no affidavit of Dr. Pathak has been filed so as to point out any negligence on the part of Dr. Ashish Agrawal. He produced literature showing that the stones can move and placed two judgments .before us in support of his contentions that due care had been taken by Dr. Ashish Agrawal. The judgments relate to degree of care expected from doctor which is reasonable degree of skill, knowledge and care. The rulings are: Laxman Balkrishna Joshi v. Trimbak Bapu Godbole and Anr., AIR 1969 SC 128 and Vinitha Ashok (Smt.) v. Lakshmi Hospital and Others, I (2002) CPJ 4 (SC)=VI (2001) SLT 735=(2001) 8 SCC 731.
Learned Counsel appearing on behalf of the complainant submitted before us that the discharge summary shows that the stone had been removed but affidavit of Dr. Agrawal shows that during operation stone was not found at that particular spot. According to him, there is contradiction in terms which itself proves medical negligence. He also placed before us medical literature and argued that Ultrasonography should have been done and X -ray should have been immediately taken preceding operation, but Dr. Ashish Agrawal did not exercise reasonable care and skill, which is accepted from operating surgeon.
4. COUNSEL for the Insurance Company submitted before us that Dr. Ashish Agrawal who had operated on the son of the complainant was not covered under the insurance policy, which is clear from the details of the hospital staff, which were provided and covered under the said policy. He submitted that for inclusion of Dr. Ashish Agrawal, additional premium was to be paid and that an application had been filed for inclusion of the name of Dr. Ashish Agrawal after he took over in the hospital on 20.5.2002. The said application was forwarded by Business Manager of O.P. No. 1, the Oriental Insurance Co., Damoh.
5. DISTRICT Forum after taking into account that the medical practitioner are required to do their job with skill and reasonable degree of knowledge and also taking into account the report of Dr. Pathak as also the fact that the affidavit of Dr. Pathak had not been filed by the complainant and the facts relating to the operation, came to the conclusion that the complainant had failed to establish medical negligence. Accordingly, the complaint was dismissed. This order was challenged before the State Commission.
6. THE State Commission referred to contradiction in the versions of the respondents and held that the respondent -doctors had not properly located the stone and had not taken due care while performing operation. The contradictory versions were: admission and discharge ticket issued by the respondent hospital which reads that stone was removed through transversal approach and in the reply the respondent have stated that the stone was not found at the place which was shown in the X -ray report and, as such, the respondent suspected that either stone had shifted upward or there were only some crystals and because the time of anesthesia was nearing end, therefore, the operation was stopped and the ureter was closed. The State Commission accordingly directed the opposite parties to pay charges of operation, which were Rs. 20,000 and also ordered payment of compensation of Rs. 30,000 for physical and mental torture. In all Rs. 50,000 was ordered to be paid by the opposite parties jointly and severally to the complainant.
7. THE son of the complainant was admitted for abdominal pain in the hospital of O.P. No. 1 on 2.7.2002 and the X -ray was taken on the same day, which revealed stone in the bladder. The patient was admitted and was operated by O.P. No. 2, Doctor Ashish Agrawal on 3.7.2002. According to affidavit by Dr. Ashish Agrawal, no stone was detected at the place where it was shown by X -ray report and it was felt that either the stone had shifted upwards or there were only crystals due to which, the operation was stopped and ureter was closed. There is no doubt that in the discharge report issued by the hospital, it was stated that the stone was removed through transversal approach. However, the said discharge report has not been duly proved, nor it has been established as to who had written in Column "treatment received" that the stone was removed through transversal approach. Dr. Ashish Agrawal has categorically stated that no stone was found at the place shown in the X -ray and the operation was stopped and ureter was closed. The affidavit of Dr. Ashish Agarwal has to be accepted as against the discharge summary issued by the hospital. The patient was discharged on 10.7.2002. The complainant took his son to Pathak X -ray and Ultrasonography Centre on 12.7.2002, where X -ray was taken and it revealed that there was stone in the left renal pelvis. No affidavit of Dr. Pathak has been filed. Be that as it may, it is now well settled that a medical practitioner must exercise reasonable degree of care and he must possess reasonable degree of skill and knowledge. The law does not require exceptional skill from a medical practitioner. The Apex Court in the case of Jacob Mathew v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=122 (2005) DLT 83 (SC)=VI (2005) SLT 1=III (2005) CCR 9 (SC)=(2005) 6 SCC 1, has after referring the various judgments starting from Bolam''s case followed by catena of decisions of Apex Court has observed as under:
17. The conclusions are as under - (i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that the professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practises?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post -operative or condition environment -oriented deficiency?
8. THE medical literature which has been filed before us by both the sides would go to show that the stones in the bladder have tendency to migrate and move. The stones or part of it may not be found and may move down to the bladder or back to the kidney. Accordingly, a plain X -ray obtained pre -operatively is strongly advised because stones often change position and even may pass through. X -ray of KUB immediately prior to the operation should be available and is advised as stones can move and surgical strategies vary with the position of the stone. Knowing the precise location of the stone before the surgery is essential. The medical literature also shows that it is desirable that the patient should be X -rayed on his way to the operating table in order to confirm that stone has not moved since previous examination. This position must be known by the operating surgeon of even ordinary skill. Therefore, X -ray of the part where stone is suspected immediately before the operation is required to be taken before taking the patient for operation. In this case Dr. Ashish Agrawal was negligent and he operated upon the son of the complainant on an X -ray, which was taken one day prior to the operation. The result was that Dr. Ashish Agrawal did not find the stone where it was shown in the X -ray dated 2.7.2000. The X -ray taken by Dr. Pathak shows that the stone had shifted to left renal pelvis on account of which, second operation had to be done. Therefore, in our view, Dr. Ashish Agrawal has to be held responsible for medical negligence and compensation awarded by the State Commission cannot be interfered with since the same in our opinion is on the lower side. No appeal has been filed against the order by the Insurance Company and the liability of the Insurance Company cannot be diluted on the ground that the name of Dr. Ashish Agrawal was not included in the insurance policy. However, it is clear that an application had been filed by hospital to add the name of Dr. Ashish Agrawal in the policy and letter to this effect was sent by Business Manager of the hospital to the Branch Manager of Oriental Insurance go. Ltd.
9. FOR the aforesaid reasons, we do not find any merit in this revision and the revision is hereby dismissed with cost of Rs. 10,000 to be paid by the petitioner to the complainant. R.P. dismissed.
